Introduction

As opposed to the emotional sloganeering of radical liberals who generate more heat than light, Dr Thio's speech in Parliament generates both heat AND light - apt to excite the emotions and full of blinding verbosity. Adopting her approach of flagging red herrings, perhaps it would be enlightening to dispel some of the heat, light and not to mention, smoke generated - and for the record and the avoidance of doubt, this is not, I emphasise, an attempt to vilify nor to assassinate any person’s academic reputation. This is merely an assertion of academic freedom which would hopefully shed some light (sans the heat and smoke) on the topic of repealing 377A.

 
Four Red Herrings

1. To say that a law is archaic is chronological snobbery. To conveniently overlook the arguments that flow this statement is intellectual disingenuousness. Archaic laws should be repealed not because they have been in place for centuries. The evolution of public policy, morality and constitutional values move the laws which reflect the times of the age. It is but of course that our laws change over time.

2. Identifying an ultimate goal is perhaps a necessary and implicit step in the marking of libertarian arguments. However, whether such a goal necessarily involves a final destination of the sexual libertine ethos of the wild wild West, I cannot be so sure. The onus is on those who argue against repealing 377A that this is the necessary and inescapable conclusion.

3. Harm - what is done in private can have public repercussions. Harm can be as wide and as narrow as we define it. Why do we criminalise drug trafficking/consumption? Harm to the drug addict and harm to society. Easy. Why do we criminalise sodomy between homosexuals? Harm to the individuals (STDs) and harm to society (breakdown of the family unit, spread of STDs, etc). But wait a minute – doesn’t heterosexual sex potentially cause the same thing? Perhaps, heterosexual sex should be criminalised too? Of course not - after all, it is unprotected sex that is the ultimate cause of STDs - any medical doctor (and certainly science) will probably be able to pronounce this with some unpoliticised certainty (and without having to make elaborate arguments about the peculiar nature of anal sex). Maybe a less intellectually disingenuous argument in this regard would be to criminalise unprotected sex to promote public health. Classifications may be imperfect and/or under-inclusive - but when they are blatantly so, perhaps we should, if just to be intellectually responsible, to consider whether there is some flaw in the argument(s).

4. Open-mindedness and objectivity. There is no objectivity because there is no neutral ground because we are required to make a stand and a moral judgment. Bravo – but this sounds rather confusing because to make a stand and a moral judgment, we should probably first make substantive arguments, and to be fair when presented with views from both sides. Then, we cast an objective eye and apply an open mind, again on the arguments on both sides, and reach a stand. How intellectually disingenuous can this process be?

 
Three Legal Issues

1. Constitutional right to sodomy - of course different academics will have differing views of the definition of personal liberty but the bottomline must be that such rights are inherent and are not granted by the State - i.e. the government. The government is free to impose laws - to the extent it is a democratic institution and subject always to constitutional constraints. But whatever definition we choose to ascribe, we may then wonder why adultery is NOT criminalised – is there is a constitutional right to adultery somewhere in the Constitution? Of course not. Is there a satisfactory explanation as to why adultery is not criminalised? Not very sure. Adulterors do not lobby for toleration - how contrite and considerate of them. Could it be because adultery is not a crime to begin with? Probably - lucky adulterors.

2. Sexual minorities and scientific proof - science has been politicised and probably so has human rights lawyers and activists. If science cannot conclusively say either way that homosexuality is genetic or environmental, it is quite surprising that a bald statement like "homosexuality is a gender identity disorder" can be made without being intellectually disingenuous (in any case, there is in all likelihood a typo - it is surely sexual identity rather than gender identity since the latter sounds more like transsexuality).

Constitutional rights do not depend on "fixed traits". This should perhaps be clear by now – even gender can be changed - but is anyone questioning gender equality? Perhaps an analogy is not perfect, and perhaps it is under-inclusive - but it does go some way to illustrating the point.

And finally, another very intellectually disingenuous argument - repealing 377A and repealing bestiality and paedophilia are obviously different kettles of fish, or rather, false analogies (as opposed to just being imperfect and/or under-inclusive). I wonder which libertine wild wild West society which decriminalised sodomy has also decriminalised sex with minors.

3. Article 12 (Equality) - a valid classification is called "differentiation" while an invalid one is called "discrimination". So far so good. Rational correlation to the legitimate purpose seems to be an appropriate test for this as well. Legitimate purposes are all too easy to formulate - it is rational correlation that seems difficult to substantiate. Perhaps that is why courts in other parts of the world have ruled that anti-sodomy laws are unconstitutional.

 
Social Consequences - 5 Steps to Ancient Greece on the Titanic

1. Step 2 sounds rather odd already. Can we, being a conservative (which I reiterate, is not a bad word but has to do with environmental protection and perhaps also the shophouses at Emerald Hill) society, ever conceive heterosexual age of consent being reduced to 13? If not, then perhaps such a false analogy should be avoided.

2. Step 3 is just short of bizarre and I wonder once again, which libertine wild wild West society has already decriminalised sex with minors.

3. Steps 4 and 5 are unfortunate - it just confuses criminalising an act and endorsing it. Is adultery criminalised? No. Does it mean we endorse it? No. Does it not lead to breakdown of the family unit and public morality? Of course, it does.

As a rational individual, we must be able to rise above the heat, light and smoke to differentiate between decriminalising something and endorsing something. We may not endorse something, but does it necessarily follow that it should become/remain a criminal offence? Does repealing 377A result in the surrender of fundamental moral beliefs and the tyranny of the undemocratic minority? The appeal to think with reason and not with feelings is very timely – perhaps a campaign to promote sodomy would have such disastrous results, but is something like that being contemplated? No.

 
Conclusion

Finally, lest any misunderstanding arise – there is no irrational hatred nor any intention to let this be abusive rhetoric or tantrum-throwing. There may be some rhetorical questions posed, but they have been prompted because it is necessary to question certain premises/conclusions as with any intellectual discourse.